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2020 DIGILAW 242 (GAU)

Abdul Hai v. State Of Assam

2020-02-19

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT Mir Alfaz Ali, J - Heard Mr. N Mahajan, learned counsel for the appellant and Ms. S Jahan, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order passed by the learned Sessions Judge, Bongaigaon in Sessions Case No.122 (M)/2016. By the said judgment learned Sessions Judge convicted the appellant under section 302 IPC and sentenced him to Rigorous imprisonment for life and fine of Rs.5,000/- with default stipulation. 3. As per the prosecution case, the victim Nur Nehar Begum was given in marriage to the appellant. Since after the marriage, she was subjected to physical and mental torture by the appellant. On 23.05.2013 at about 1.00 AM at night the present appellant and his mother killed the victim Nur Nehar Begum by strangulation on dowry related issue. Initially a GD entry was made on 24.05.2013 on the basis of information given by Nausad Ali (Pw-4) and a UD Case was registered being UD Case No.10/2013. In connection with the said UD case, the Executive Magistrate conducted the inquest on the body and Pw-9 Dr. Prasanta Sarkar, conducted the post-mortem examination. The autopsy doctor found the following injuries on the body of the deceased: wxyz 1. Bruise over neck zyxw wxyz 2 . Fracture of hyoid bone zyxw 4. The doctor could not give any definite opinion as to the cause of death and therefore, viceras were sent for chemical examination. In the meantime on 25.03.2013 a formal FIR was lodged by the father of the victim, on the basis of which Manikpur PS Case No.99/2013 was registered under section 302/34 IPC. During investigation, FSL report was collected by the Investigating Officer where the report of the FSL shows that the vicera gave positive test for organo phosphorus. After completion of the investigation charge-sheet was laid against both the FIR named accused, including the present appellant. 5. During the course of trial learned Sessions Judge framed charges under section 306/302 IPC read with section 34 IPC against both the accused persons, to which they pleaded not guilty. Sixteen witnesses were examined by the prosecution in order to bring home the charges. 6. The first witness examined by the prosecution was Raham Ali, the father of the deceased who lodged the FIR. Sixteen witnesses were examined by the prosecution in order to bring home the charges. 6. The first witness examined by the prosecution was Raham Ali, the father of the deceased who lodged the FIR. Pw-1 stated in his evidence, that about 4-5 years ago, the victim was married to the appellant and after marriage when she visited her matrimonial home she complained of demanding money by the appellant. As they could not fulfil the demand of the appellant, the appellant assaulted the victim. All of a sudden one day a person came and informed him that the victim was lying ill and asked him to go there. Having received the information he along with Pw-2 Billal Hussain and Pw-3 Maiful Nessa @ Moiful Bibi went to the house of the appellant and found the victim lying in their house and she was not in a position to speak. Immediately a vehicle was arranged and she was taken to hospital and on the way to Bongaigaon Civil Hospital, the victim died. During cross-examination of this witness it was elicited that after the post-mortem examination, the body was brought to his house, where ''Janaja'' prayer was performed and the accused also attended the Janaja prayer. During crossexamination this witness further stated that he had forgotten as to when or how much money was demanded from his daughter. 7. The second witness examined by the prosecution was Pw-2 Billal Hussain, brother of the victim. He testified that after marriage Abdul Hai demanded dowry from his father. As his demand could not be fulfilled, the victim was subjected to assault and torture. On the day of occurrence at about 8.00 AM, he was informed by a person that the victim consumed poison. Having got the information he along with Pw-1 and Pw-3 went to the house of the accused and found the victim lying there. He also stated to have arranged a vehicle (auto rickshaw) and took the victim to hospital. However, the appellant suggested for taking the victim to a quack. Therefore, initially she was taken to a quack who attended her and as there was no improvement she was taken to Bijni hospital, wherefrom she was shifted to Bongaigaon Civil Hospital and on the way the victim died. He further stated that the accused made a confession before the public, that he had killed the victim. Therefore, initially she was taken to a quack who attended her and as there was no improvement she was taken to Bijni hospital, wherefrom she was shifted to Bongaigaon Civil Hospital and on the way the victim died. He further stated that the accused made a confession before the public, that he had killed the victim. It was also elicited from his cross-examination that the Janaja prayer was held in their house, which was attended by the accused, who also had meal in their house. 8. The third witness Pw-3 Maiful Nessa @ Moiful Bibi was the aunt of the victim, who also accompanied Pw-1 & Pw-2 to the house of the appellant. She deposed that on arrival at the house of the accused they found the victim lying. On being called by her, she did not gave any response and her body was stiff. Thereafter an auto was called and the victim was taken to hospital. This witness also stated that Abdul Hai was adamant to take the victim to a quack and in the process of taking her to a quack 11/2 hour was wasted and she died on the way to the hospital. She also stated that the appellant confessed before the police and public that he had killed the victim. 9. The fourth witness Pw-4, Nausad Ali deposed that at about 9.30 AM the victim was brought to their house dead and he informed the police on suspicion that she might have been killed. This witness also stated that Abdul Hai used to torture her in various ways and demanded money in cash and kind. 10. The previous statement of all these four witnesses, recorded under section 161 Cr.P.C., which were confronted to them and confined through the Investigating Officer transpire that none of them stated in their previous statement regarding demand of money and the assault or torture for such demand. They also did not tell before police regarding the confession made before the public nor any such statement was made in the FIR. Omission of such material facts which obviously goes to the root of the matter, in view of the nature of accusation, certainly amounted to contradiction, having potential to affect the credibility of the witness. They also did not tell before police regarding the confession made before the public nor any such statement was made in the FIR. Omission of such material facts which obviously goes to the root of the matter, in view of the nature of accusation, certainly amounted to contradiction, having potential to affect the credibility of the witness. Therefore, in our considered view, oral testimony of these four witnesses regarding confession before public as well as the demand and alleged physical or mental torture was hardly worthy of inspiring confidence and as such, rightly rejected by the learned trial Court. 11. Pw-8 Gul Bhanu was the step mother of the deceased. She also stated that having come to the house of the accused she found the victim lying on the ground and blood was coming out from her mouth and nose. This witness also stated in her evidence, that the victim used to visit matrimonial home frequently and complained about demand of money which could not be fulfilled. She further stated, that as they could not fulfil the demand she suspected foul playing the death of the victim. She admitted during cross-examination that the victim was a very short tempered women and used to leave the matrimonial home very often after quarrel with the husband on small matters. She also pleaded ignorance if the deceased committed suicide by consuming poison. 12. Pw-13 Mominul Islam who happens to be cousin of the deceased also stated that having come to know about the occurrence, he came to the house of the accused and learnt that the victim was taken to a quack. Thereafter, when blood was oozing out of her nose she was taken to the chamber of one doctor Hasmat at Bijni from where she was shifted to Bongaigaon hospital and on the way she died. He also stated that prior to the incident the accused Abdul Hai assaulted the victim demanding money and sent the victim to her parental house on occasions. However, no such statement was made by him before police nor any other witness including the father of the victim ever stated that the victim was driven out time on demand of money. 13. Pw-5 & Pw-6 were declared hostile, however, we find nothing significant in their testimony which can be dependable. 14. Pw-10, Pw-11 & Pw-12 were the neighbours of the appellant. 13. Pw-5 & Pw-6 were declared hostile, however, we find nothing significant in their testimony which can be dependable. 14. Pw-10, Pw-11 & Pw-12 were the neighbours of the appellant. All of them have stated to have heard that the wife of the appellant consumed poison. During crossexamination all these four witnesses deposed that they have seen cordial relation between the victim and her husband. They also stated that the victim was short tempered and used to get irritated on trial matter. 15. Appreciating the above evidence, learned Sessions Judge convicted the appellant under section 302 IPC and awarded sentence as indicated above. 16. Apparently there was no direct evidence of the offence and learned trial Court recorded conviction of the appellant on the basis of circumstantial evidence and following circumstances were relied by the learned trial Court: wxyz 1. Death of the victim was homicidal. zyxw wxyz 2. Death was caused by strangulation zyxw wxyz 3. Fracture of hyoid bone, which ruled out the theory of suicide by consumption of poison. zyxw wxyz 4. Poison was administered by force after strangulation. zyxw wxyz 5. Appellant wasted time by taking the victim to quack zyxw wxyz 6. The appellant alone was with the victim in the house on the previous night, when the victim allegedly consumed poison or the poison was administered to her. zyxw wxyz 7. Appellant failed to offer any explanation as to how the victim consumed poison. zyxw 17. Evidently, there was no medical evidence suggesting asphyxia due to strangulation being the cause of death. Rather Pw-9 the doctor, who conducted the post-mortem examination, did not give any definite opinion as to the cause of death and awaited for the forensic examination report of the viceras. That the victim did not die due to strangulation, was also evident from the oral testimony of Pw-1, Pw-2, Pw-3, Pw- 4, Pw-8 & Pw-13. All these prosecution witnesses deposed that having come to know about illness or consumption of poison by the victim they came to the house of the appellant at about 9.00 AM, when the victim was alive and she was initially taken to a quack and thereafter to a doctor at Bijni, wherefrom, she was shifted to Bongaigaon Civil hospital and on the way to hospital she died. Thus the oral testimony of the prosecution witness as well as the medical evidence totally ruled out any probability of death being caused by strangulation or asphyxia. As the doctor could not ascertain the cause of the death, viceras were sent for forensic examination. Pw-14 Jageswar Bordoloi, Scientific Officer, FSL Guwahati deposed that he received the vicera in three jars (vicera of kidney, liver and stomach), and the chemical examination of the vicera as above gave positive test for organo phosphorus. What is therefore evident from the scientific evidence, including the post mortem report is that there was no definite opinion as to the cause of death, nor the doctor has given any opinion that the death was homicidal. Therefore the finding of the learned Sessions Judge that death of the deceased was homicidal caused by strangulation does not appears to have borne out of any evidence on record, rather, such finding, goes contrary to the oral and medical evidence brought on record. What therefore, crystallizes is that the circumstance No.1 & 2 having relied by the learned trial Court were never proved. 18. Evidently all the witnesses have stated that they were informed at 8.00 AM about the victim consuming poison and thereafter Pw-1, Pw-2, Pw-3, Pw-4 & Pw-8 came to the house of the appellant and took the victim to the hospital. In fact, there was no evidence on record to show as to when the poison was consumed by or administered to the victim. We find no evidence on record that the consumption or administration of poison took place at night and after the victim retiring to bed. Therefore, we do not find any evidence on record to substantiate the findings of the learned Sessions Judge that occurrence took place at night. Therefore, the finding of the learned trial Court, that the victim consumed poison or it was administered forcibly at night after her retiring to bed was also not borne out of evidence on record and as such the circumstance No.6 also can by no stretch of imagination be held to have been proved beyond reasonable doubt. 19. The post-mortem report and the evidence of the autopsy doctor Pw-9 transpires that the victim had no ligature mark, however, the doctor found the hyoid bone fracture with contusion on surrounding soft tissue. 19. The post-mortem report and the evidence of the autopsy doctor Pw-9 transpires that the victim had no ligature mark, however, the doctor found the hyoid bone fracture with contusion on surrounding soft tissue. During the cross-examination the doctor stated that the fracture of hyoid bone with contusion on surrounding soft tissue was indicative of manual strangulation. As per the medical jurisprudence by Modi, the fracture of hyoid bone though as a rule is found caused due to strangulation, but then, fracture of hyoid bone for some other reason has not been ruled out. The doctor, Pw-9, admitted to have not mentioned in the post-mortem report that hyoid bone fracture with contusion indicated manual strangulation. It was only during crossexamination, when he was asked regarding the cause of fracture of hyoid bone of the victim, Pw-9, Doctor, had opined that the hyoid bone fracture might be caused by manual strangulation. What therefore, evident from the testimonies of the doctor, is that he has not given any conclusive opinion, that hyoid bone fracture of the victim was caused by strangulation. The doctor only stated during cross-examination that it might be caused by manual strangulation. Therefore, from the medical evidence it is clear that fracture of hyoid bone may also be caused by reasons other than the strangulation. Therefore, the opinion of the doctor in cross-examination was not a conclusive opinion as to cause of fracture of hyoid bone in the present case. 20. A Division Bench of this Court in Bipul Choudhury vs State of Tripura, (2009) 3 GauLT 119 held that the stray opinion given by doctor during crossexamination cannot be taken as a conclusive prove. The Division Bench held as follows: wxyz " The Apex Court in Vadugu Chandi Babu Vs. State of A.P., (2002) 6 SCC 547 held that what is stated by the doctor in the crossexamination is not a conclusive opinion but it is only a possibility. In the case it was the case of prosecution that the deceased was killed and must be by the appellant, Vadugu Chandi Babu, by strangulation. State of A.P., (2002) 6 SCC 547 held that what is stated by the doctor in the crossexamination is not a conclusive opinion but it is only a possibility. In the case it was the case of prosecution that the deceased was killed and must be by the appellant, Vadugu Chandi Babu, by strangulation. In this case, the doctor, who conducted the post-mortem examination on the dead body of deceased Sipra Das (Choudhury) did not give the definite opinion that the deceased died a homicidal death due to strangulation, but one of the doctor, who had conducted the post-mortem examination, in his crossexamination stated that the deceased died a homicidal death due to strangulation. The Apex Court in the absence of materials in the post mortem examination report in Vadugu Chandi Babu''s case (supra), had not accepted the statements of the doctors in his cross-examination that the cause of death of the deceased is due to strangulation and homicidal in nature. The relevant portion of the judgment in Vadugu Chandi Babu (supra) read as follows: zyxw wxyz " . The learned Sessions Judge though found no support from the evidence of the doctor relied upon his cross-examination wherein he answered thus: "It is true that generally in all cases of throttling marks of violence and injuries cannot be found". From this the learned Judge drew an inference that in a throttling case the external injury is not a necessity. We cannot accept the inference drawn by the High Court based on the stray statement of the doctor in his cross-examination. We should note that what is stated by the doctor in the cross-examination is not a conclusive opinion but it is only a possibility. It the case in hand, there is no other material to show that the death in this case has occurred by throttling. More so in the background of the medical evidence, the expert evidence and the chemical examiner''s opinion, therefore, this stray statement of the doctor could not have been relied upon by the learned sessions Judge to come to the conclusion that the death was due to strangulation." zyxw 21. Evidently the victim did not die due to fracture of hyoid bone. Evidently the victim did not die due to fracture of hyoid bone. The autopsy doctor also did not opine conclusively that fracture of hyoid bone of the victim was caused by manual strangulation, nor there was any convincing material or evidence on record to suggest, that the appellant has strangulated the victim causing the fracture of hyoid bone. Be that as it may, fact remains is that cause of death of the victim remained undecided and the death by strangulation has also been ruled out by the medical evidence as well as oral evidence. 22. The only question left out is whether the organo phosphorus found in the viscera was consumed by the victim herself or it was administered or in other words, even if it is assumed for the sake of argument that cause of death was poison, whether it was suicidal or homicidal. 23. We take note of, that the hyoid bone fracture is curable and fracture of hyoid bone does not cause death. According to medical science the fracture of hyoid bone result in dysphagia, which mean difficulty in swallowing and one can swallow even after fracture of hyoid bone, albeit with some difficulty. Therefore, fracture of hyoid bone does not mean that one cannot swallow anything. Another aspect of the matter of hyoid bone fracture is the extent or severity of the fracture. Because sometimes the fracture may cause dislocation and there may also be hairline fracture or minor fracture. The medical evidence is silent as to the extent of the fracture of the hyoid bone. Therefore, in view of the above evidence it cannot be said with certainty that the victim was not able to swallow. 24. Apparently there was no injury on the nose or facial part of the victim. Absence of any injury on the nose and facial part also make the theory of administering of poison doubtful, reason being that in order to administer poison against the will, force is required to be applied which is likely to cause injury on the nose and lips etc. There was also no direct evidence to show that the present appellant administered the organo phosphorus forcefully. There was also no direct evidence to show that the present appellant administered the organo phosphorus forcefully. When the death by strangulation has been ruled out by the medical evidence and the evidence was not clear and conclusive, that organo phosphorus was administered by the appellant, it is difficult to come to a conclusion solely on the basis of FSL report showing presence of organo phosphorus in the vicera that the death was homicidal. Since one can swallow even after fracture of hyoid bone the possibility of the victim herself consuming the organo phosphorus cannot also be ruled out in view of the oral testimony of Pw-10, Pw-11, Pw-12 and Pw-8 that the victim was short tempered and used to get irritated on trivial matters as well as oral testimony of Pw-10, Pw-11 and Pw-12, close neighbours of the accused, that conjugal relation between husband and wife was cordial. Thus the evidence on record speaks loud and clear that the circumstance No.3 & 4 have also not been proved beyond reasonable doubt. 25. The last circumstance relied by the learned trial Court was based on section 106 of the Evidence Act, which was dependent on the circumstance No.6. As already indicated, the prosecution evidence was grossly inadequate to prove that the victim consumed poison or poison was administered to her at night when the appellant alone was with her. In absence of such evidence, no special knowledge could be attributed to the appellant to saddle him with the responsibility of explaining any circumstance under section 106 of the Evidence Act. Therefore, in our considered opinion the circumstance No.7 was redundant inasmuch as, the prosecution has failed to establish any circumstance, to seek explanation from the accused attributing special knowledge under section 106 of the Evidence Act. 26. In view of above evidence, we are of the considered opinion that there was no chain of circumstance capable of leading to an irresistible conclusion that the appellant killed the victim or he alone was responsible for homicidal death of the victim. In fact prosecution evidence even fell short of proving that the death of the victim was homicidal. In view of the above facts and circumstances, at least the appellant is entitled to the benefit of doubt and as such, the conviction and sentence of the appellant, cannot be sustained. In fact prosecution evidence even fell short of proving that the death of the victim was homicidal. In view of the above facts and circumstances, at least the appellant is entitled to the benefit of doubt and as such, the conviction and sentence of the appellant, cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellant under Section 302 IPC giving him the benefit of doubt and allow the appeal. The appellant be set at liberty forthwith, if not required in any case. 27. A copy of this order be forwarded to Superintendent of District Jail, Abhayapuri, Bongaigaon. 28. Send down the LCR along with a copy of this judgment.